State v. Skaggs, Unpublished Decision (9-21-1999) ( 1999 )

JOURNAL ENTRY AND OPINION Applicant, Henry James Skaggs, has filed an "application for reconsideration" of this court's denial of a motion for delayed appeal. The applicant's motion for reconsideration is made pursuant to App. R. 26 and State v. Murnahan (1992),63 Ohio St.3d 60. It is unclear, however, whether the applicant is requesting reconsideration pursuant to App. R. 26 (A) or reopening pursuant to App. R. 26 (B). Thus, we shall examine the applicant's motion in light of App. R. 26 (A) and App. R. 26 (B).

App. R. 26 (A) provides in pertiment part that the application for reconsideration:

* * * be made in writing before the judgment or order of the court has been approved by the court and filed by the court with the clerk for journalization or within ten days after the announcement of the court's decision, whichever is later.

Herein, the denial of the applicant's motion for delayed appeal was announced on May 12, 1999. The application for reconsideration, pursuant to App. R. 26 (A), was not filed until June 17, 1999. Clearly, the applicant's application for reconsideration was filed beyond the mandated ten-day period and is untimely. We thus deny the applicant's application for reconsideration. State v. Seiber (Sep. 2, 1993), Cuyahoga App. No. 63717, unreported, reopening disallowed (Nov. 22, 1994), Motion No. 54034.

App. R. 26 (B) clearly provides in pertinent part that:

A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later date. (Emphasis added.)

In the case sub judice, no appellate judgment that examined the propriety of the applicant's conviction and sentence was announced and journalized by this court. Thus, this court is prevented from considering the applicant's application for re-opening as made pursuant to App. R. 26 (2). Cf. State v.Loonier (1996), 76 Ohio St.3d 398; State v. Halliwell (Jan. 29, 1999), Cuyahoga App. No. 70369. unreported, reopening disallowed (Jan. 29, 1999), Motion No. 00187; State v. Fields (Feb. 29, 1996), Cuyahoga App. No. 68906, unreported, reopening disallowed (Sep. 5, 1997), Motion No. 84867; State v. Williams (Oct. 31, 1996), Cuyahoga App. No. 69936, unreported, reopening disallowed (May 7, 1997), Motion No. 82993.

Accordingly, we deny the applicant's application for reconsideration.

JAMES M. PORTER, A.J. CONCURS TIMOTHY E. McMONAOTE, J. CONCURS.

_____________________________________ PRESIDING JUDGE KENNETH A. ROCCO